Appeal from the District Court, Third Judicial District, County of Alameda.

         The defendant, on the fourth day of March, 1872, was elected marshal of the city of Oakland, for two years, and, as marshal, was ex officio tax collector. Brooklyn, an incorporated town, joined Oakland on the south. On the first day of May, 1872, W. H. Hamilton was elected assessor of Brooklyn, and assessed the property of the town before the first Monday in August. The Board of Trustees of Brooklyn, on the seventh day of October, levied a tax for town purposes. The tax was payable before the first Monday in January, 1873, and the town treasurer was made the collector. The act of February 1, 1872, empowered the inhabitants of territory adjacent to a city to annex such territory to the city by a vote. On the eleventh day of November, 1872, Brooklyn was under said act annexed to Oakland, by a vote of the inhabitants of Brooklyn. The Board of Trustees of Brooklyn delivered to the Council of the city of Oakland the assessment-roll of Brooklyn, and the defendant proceeded to collect the tax. The plaintiff's property in Brooklyn had been assessed, and the defendant threatened to sell it for the delinquent tax. He served the following protest on the defendant, and then paid it:

         " Perry Johnson, marshal and ex officio tax collector of the city of Oakland. Sir: You will take notice that I pay you the taxes on my property in the late town of Brooklyn (assessed for purposes of revenue of said town, for the fiscal year ending June 30, 1873, as per the assessment-roll thereof now in your possession, and for the collection of which said taxes you have advertised for sale and threaten to sell my said property) under protest, and by duress and compulsion, and to save my said property from sale and confiscation, and that I protest against said payment and against your acts in the premises as unlawful, unjust and oppressive. Dated February 21, 1873."

         This action was brought to recover the amount of the tax thus paid under protest. The court rendered judgment for the defendant, and the plaintiff appealed.

         COUNSEL:

         The power to collect this tax was given to the town of Brooklyn, and not to the city of Oakland, and the latter, through its collector or otherwise, could not assume that power. (Act to incorporate thetown of Brooklyn, etc., approved April 4, 1870, Stat. 1869-70, p. 680, sec. 8; Dillon's Municipal Corporations, 556-559.)

         Besides, defendant was not elected tax collector of the town of Brooklyn, nor by the electors of that town, for which the taxes were levied and assessed. (Const., Art. XI, sec. 13; Merrill v. Gorham , 6 Cal. 41-43; People v. Hastings , 29 Cal. 449-453.

         The defect or want of authority in the defendant was a matter of law, and known to him as well as the plaintiff and his assignors, and no protest was necessary for that purpose. (4 Met. 181-89; 17 Mass. 461; 12 Pick. 7.)

         The only office of a protest in this case is to show that the money was not voluntarily paid.